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Commissioner

Professor Gillian Black

Team Members

Lorraine Stirling, Project Manager
Natalie Fowler, Legal Assistant

A review of aspects of family law is being undertaken by the Commission’s family law team, led by Professor Gillian Black.

Aspects of family law project

The review of aspects of family law was announced in our Tenth Programme of Law Reform (February 2018), and continues into our Eleventh Programme of Law Reform.

Civil remedies for domestic abuse

Phase 2 of our Aspects of family law project focuses on a review of the law of civil remedies for domestic abuse, and we published our Discussion Paper seeking views on options for reform of this area of law on 23 October 2024. Please see an introductory talk on the paper by Commissioner Professor Gillian Black attached: https://youtu.be/a1S9YdNpUlM. The consultation period closed on 5 February, however please contact the team's project manager Lorraine.Stirling@scotlawcom.gov.uk if you still wish to respond.

Currently, the law of civil remedies for domestic abuse is spread over many different statutes, as well as the common law, which makes it confusing for practitioners to advise on and for victims/survivors to understand. Our review considers whether and how the law in this area can be simplified, clarified, and updated. The project does not however extend to a review of the criminal law in relation to domestic abuse.

The Discussion Paper reviews the existing law and puts forward proposals both for reform of the current law and for a new law. Chapter 5 in particular sets out a proposal for a new law which would involve the creation of a statutory delict of domestic abuse, together with the introduction of a statutory civil definition of domestic abuse (harmonising it with the definition of abusive behaviour in the Domestic Abuse (Scotland) Act 2018). We also discuss specific forms of abuse, being tech abuse, immigration abuse, and economic abuse. Having set out the basis for a delict of domestic abuse, we propose introducing a bespoke set of remedies for victim/survivors, if the delict of domestic abuse is established in court, and address ancillary matters such as defences, enforcement and third party orders.

The Discussion Paper also considers who civil remedies for domestic abuse should be available to, how children are affected by domestic abuse, and access to justice issues (such as the availability of special measures to victim/survivors in court, communication between the civil and criminal courts).

For more information, see the Discussion Paper, news release, along with Executive Summary. Please also see the attached link to a video of Professor Gillian Black (lead Commissioner for the project) talking through the most important aspects of our Discussion Paper https://youtu.be/zjS7EZNtAhI

Information about the Discussion Paper, including copies of responses, may be made available in terms of the Freedom of Information (Scotland) Act 2002. We may also publish responses on our website (either in full or in some other way such as summarised); and publish a list of consultees’ names. However, those who have responded in confidence, will not have their response or name published, in accordance with the 2002 Act.

The team is now considering and analysing all the responses to the Discussion Paper, with a view to preparing a Report to submit to the Scottish Government containing our recommendations for change, along with a draft Bill which would implement these changes.

If you have any questions about the Discussion Paper or the project more generally, please email Lorraine Stirling at Lorraine.Stirling@scotlawcom.gov.uk

Cohabitation

The first phase of the Aspects of family law project focussed on a review of the law relating to claims for financial provision on breakdown of a cohabiting relationship, otherwise than by the death of one of the cohabitants (as set out in sections 25 - 28 of the Family Law (Scotland) Act 2006).  This was led by former Commissioner Kate Dowdalls KC, who is now Sheriff Principal of South Strathclyde, Dumfries and Galloway. This phase is now complete, following publication of our Report on Cohabitation together with a draft Bill implementing our reforms in this area on 2 November 2022.  An outline of the contents of the Report may be found in the Executive Summary.  The team was pleased to receive the following Scottish Government response to our Report.